July 26, 2022 | Vol. 323

(3 summaries)

Asbestos   Set Aside Verdict   Directed Verdict   Causation   Experts  

First Department
Verdict awarding $325 mil for compensatory and punitive damages, reduced to $120 mil on consent, set aside and Johnson & Johnson defendants granted judgment as a matter of law where plaintiffs’ mineral expert established amount of asbestos plaintiff was exposed to each time she used a J&J talcum powder product but their medical expert’s broad opinion that plaintiff’s “mesothelioma could have resulted from ‘a significant exposure above normal background levels’ failed to provide a scientific expression of the minimum lifetime exposure sufficient to cause the mesothelioma necessary to make out a prima facia showing of specific causation. Matter of New York City Asbestos Litig.    

Comment: The Court relied on its decision in Dyer v Amchem Prods. Inc. reported below.

Asbestos   Causation   Experts  

First Department
Asbestos-containing vinyl floor tile manufacturer granted summary judgment on experts’ opinions that amount of decedent-salesperson’s exposure to asbestos when cutting, manipulating, and breaking tiles while showing them to customers was not more than in ambient air based on a 2007 study simulating exposure within breathable zones and did not elevate decedent’s risk of lung cancer beyond the risk in the general environment (specific causation). Similar simulation studies relied on by plaintiff’s expert showed breathable asbestos levels higher than ambient air during repacking and disruption of the tiles but plaintiff’s medical expert’s broad opinion that decedent was exposed to exponentially greater amounts than ambient levels was insufficient to raise an issue on specific causation without a reliable correlation between the presence of asbestos and the inhaled amount necessary to cause lung cancer. Dyer v Amchem Prods. Inc.    

Comment: Based on the above Dyer decision, the Court granted the same tile manufacturer summary judgment dismissing the claim of an electrician who worked 5′ from floor installation with visible dust Pomponi v A.O. Smith Water Prods. Co., and the claims of a carpenter who installed vinyl tiles, finding no specific causation. Killian v A.C. & S., Inc.

MVA   Set Aside Verdict   Jury Charge  

Second Department
Trial court providently granted plaintiff’s motion to set aside verdict in the interest of justice where it incorrectly charged VTL §1151(b) which applies only to intersections not controlled by traffic signals as it provided a statutory standard not applicable to the case where it was undisputed that the intersection was controlled by a traffic signal. Proper charge would have been VTL §1111 even though plaintiff did not request it. Rosenblatt v Parnes    

(11 summaries)

MVA   Reckless   Court of Claims  

Second Department
State granted summary judgment on plaintiff’s testimony that flagperson engaged in highway construction project caused her to swerve and hit tree as VTL §1103(b) reckless standard is not limited to operators of vehicles but applies to anyone conducting highway work, including a flagperson, and plaintiff did not meet reckless standard. Raghoo v State of New York    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Plaintiff’s expert cardiologist’s opinions that decedent’s longtime family practitioner departed from accepted practice and was a cause of decedent’s death by failing to include cardiac disease as part of his differential diagnosis where decedent had sudden loss of taste and appetite, unintentional loss of weight, and episodes of dizziness and vomiting that resolved, and did not refer decedent to a cardiologist as a result raised issues on departure and causation as the opinions were not speculative or conclusory. Autopsy showed decedent died of atherosclerotic and hypertensive cardiovascular disease. Shirley v Falkovsky    

MVA   Amend Answer   Collateral Estoppel   Res Judicata   Law of the Case  

Second Department
Defendants’ motion to amend their Answer to include the affirmative defenses of collateral estoppel and res judicata denied where they did not allege a previous judgement or decision and their claim that the motion should have been granted on law of the case rejected as law of the case is a ‘rule of practice,’ not an affirmative defense. Siddiqui v Smith    

Vacate Default   Reasonable Excuse   Meritorious Action   Untimely   NYC  

Second Department
Plaintiff’s motion to vacate order dismissing case for failure to appear at trial conference denied as vague and unsubstantiated claim of law office failure did not provide a reasonable excuse and court did not have to look at issue of meritorious action. Second motion to vacate order of dismissal on additional evidence of law office failure and meritorious action denied as untimely as CPLR §5015(a) requires the motion be brought within 1-year from entry of the dismissal order with Notice of Entry. Bambrick v City of New York    

Malpractice   Accepted Practice   Causation   Respondeat Superior   Experts  

Second Department
Hospital failed to meet burden for summary judgment where expert’s opinion and medical records showing plaintiff was repeatedly instructed to elevate his foot after clubfoot reconstructive surgery did not eliminate questions of whether previous instructions to elevate then hang the foot in a dependent position given by a nurse employed by the hospital caused or contributed to the gangrene that resulted in a below the knee amputation. Hospital also failed to show vascular surgeon it assigned to evaluate the plaintiff did not depart from accepted practice or that he was an independent attending it was not responsible for under respondeat superior. Vargas v Lee    

Premises Liab   Negligent Supervision   Notice   Open/Obvious   Inherently Dangerous  

Second Department
High school failed to meet burden for summary judgment dismissing premises liability claim of 8th grader injured when a glass panel of wall display he slapped while pretending to play basketball shattered as its head custodian’s testimony that a glass panel in a similar display case previously shattered leaving issue of fact of whether it had notice of the danger and issues remained of whether the condition was open/obvious and not inherently dangerous where the other 2-panels on the display case were shatterproof plexiglass and the infant-plaintiff testified he thought they were all shatterproof.

Negligent supervision claim dismissed where incident took only seconds and could not have been prevented by any degree of supervision. R.B. v Sewanhaka Cent. High Sch. Dist.    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Nightclub defendants failed to meet burden for summary judgment by showing that single step leading patrons off of dance floor was open/obvious and not inherently dangerous where the riser was painted white and there was a warning sign but testimony of plaintiff and eyewitness was that area was so crowded they could not see either the sign which was below eye level or the paint on the riser. Kernell v Five Dwarfs, Inc.    

MVA   Rear End   Nonnegligent Explanation   Foreseeability   Feigned Issue   Untimely   Note of Issue   Reasonable Excuse  

Second Department
Lower court properly entertained plaintiff’s motion for summary judgment filed beyond time set by Kings County on showing of good cause where plaintiff and defendant-driver were not deposed at time of Note of Issue and motion was brought 1-week after completion of discovery. Plaintiff granted summary judgment on his and defendant-driver’s testimony that plaintiff was stopped for traffic by gas station when rear-ended by defendants’ vehicle. Defendants proffered nonnegligent excuse that plaintiff stopped short rejected as plaintiff’s stop in traffic was foreseeable and defendant-driver’s affidavit raised only a feigned issue on traffic conditions where it deviated from his prior testimony. Munoz v Agenus, Inc.    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection  

Second Department
Building owner and manager granted summary judgment on slip and fall on wet hallway floor claim on proof they did not create or have actual notice of the condition and their porter found the floor dry when he inspected the hallway shortly before the plaintiff fell. Serebrenik v Chelsea Apts., LLC    

MVA   Turning Vehicle  

Second Department
Motorcyclist failed to meet burden for summary judgment where his and defendant-driver’s depositions viewed in the light most favorable to the non-moving party left questions of whether his motorcycle was so close as to present an immediate hazard as defendant began a left turn. DePass v Beneduci    


Second Department
Defendants granted summary judgment dismissing battery claim of inmate where correction officer inadvertently touched plaintiff’s penis for 3-seconds thinking it was contraband during a required pat-down when the inmate switched between prison sections as part of his inmate trustee position which was not battery since the touching was not “wrongful under all circumstance” and, therefore, not offensive. Hines v Westchester County    

(2 summaries)

Arbitration   Uninsured   Vacate Default   Vacate Jud   Reasonable Excuse  

Second Department
Insured’s motion to vacate judgment granting carrier permanent stay of UM claim on insured’s failure to appear on motion denied where counsel’s conclusory claim delay was caused by law office failure from an attorney leaving the firm was not a reasonable excuse for not appearing and insured did not offer a reasonable excuse for the 3-year delay in moving to vacate the judgment. Matter of Maya Assur. Co. v Zheng    

Arbitration   Uninsured   Hearing  

Second Department
Uninsured carrier granted permanent stay of arbitration demanded by rear passenger where daughter-driver gave police plate number and description of vehicle and she and offending driver testified to make, model, and plate vehicle that was in the vicinity and insured by another carrier at framed issue hearing. Court found vehicle insured by other carrier at framed issue hearing. Matter of USAA Gen. Indem. Co. v McQueen    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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